Obamacare lives

What a disappointing week. Well, I suppose the lesson is the usual one: some of the these problems have to be solved with the ballot box, not with the courts.

Update: It's a 5-4 decision, with Chief Justice Roberts joining Justices Ginsberg, Breyer, Kagan, and Sotomayor in construing the individual mandate as a tax rather than a penalty for Constitutional purposes. (It's still treated as a "penalty" for purposes of the Anti-Injunction Act; if it had been a tax for that purpose, the Court could not have heard the case.) The Court rejected the attempt to justify the mandate as an exercise of either the Commerce Clause or the Necessary and Proper Clause, stating that the Commerce Clause cannot regulate passive non-behavior. Instead, it's simply a tax imposed on people who decline to buy insurance. The penalty is not so harsh as to constitute an absolute prohibition of the decision to go bare.

The Court struck down the portion of Obamacare that funds an expansion of Medicaid, but threatens states with the loss of all of their traditional Medicaid funding if they opt out of the expansion. As it stands, therefore, states will have a free choice whether to participate in the expanded Medicaid system.

45 comments:

raven
said...

Or another box. In your heart, do you REALLY believe a country so divided on the basic principals can be united peacefully? We are no longer arguing about the right path to take, to a commonly agreed destination-Now, the destination itself is the question- do we want a tightly controlled, cradle to grave marxist nanny state with government as the sole source of everything, or do we want a return to individual initiative and freedom?

Don't overlook the silver lining: the liberal wing of the court joined an opinion that found a limit on the Commerce Clause. That's significant.

How significant remains to be seen. If this just means that everything now has to be passed through the tax power, it may mean nothing other than that the IRS becomes much more powerful. On the other hand, it may at least prove to bar some of the more worrisome consequences of having the mandate stand as a legitimate exercise of the Commerce clause.

So, take that much as a win, and proceed to the political field to resist or overturn the rest. It's a shame we don't have a better standard-bearer for it, but alas! We are where we are.

As for your other suggetion, raven, that's the kind of thing that requires substantial groundwork. I don't think any of the necessary support structure is in place at this time.

Also: the other field that matters it the Catholic Church's suit against the HHS mandates. That's another clearly unconstitutional aspect of the law, which we might expect to win. (We did, after all, win on the clearly unconstitutional aspect of the individual mandate! The court just chose to bend itself into a pretzel to find a way to uphold the thing anyway: that it wasn't a tax for the AIA, but that it was for determining its constitutionality, even though the President and the Congress said it wasn't. Nice job, guys: big win for the theory that anything that might be good must also be constitutional, and the court's job is to find a way to make it so.)

The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.

As I understand the case as actually brought, the tax question was never at issue, only the Congress' power under the Commerce Clause. Moreover, the Congress explicitly withdrew that taxation aspect from the IM when they passed it. If my understanding is accurate, than Chief Justice Roberts was most assuredly activist--and in a most destructive way--in reaching for an extraneous issue as his means of upholding this abomination.

It's true that, if construed as a tax, the mandate is hard to distinguish from the F.I.C.A. that's been withheld from our paychecks all my life.

I don't suppose Mr. Obama will be freely acknowledging on the campaign trail that he's been in the business of raising taxes on every American who lacks medical insurance.

What chaps me most, perhaps, is that I strongly suspect that my high-deductible insurance will not be considered insurance for the purpose of deciding whether to impose the annual penalty on me. The penalty will be used to herd everybody into the kind of crazy insurance that has been destroying not only the health insurance market but healthcare in this country for years. Which is another reason why I say this has to be fixed at the ballot box, not that I have high hopes for the average voter's ability to understand that the path to healthy prosperity is not expensive first-dollar coverage.

Yeah, well, individuals may just pay the penalty too. I think it's cheaper than the "full monty" HHS-mandated plans that Tex is talking about. It looks like they're going to require that 'acceptable' coverage includes everything including the kitchen sink; but you can't be denied for pre-existing conditions, so why buy it?

The penalty will have to be sky-high to make it work out that people actually buy into the stuff. And now that it's clearly spelled out as a tax increase rather than a giveaway... well, it should be possible to do something with that politically.

As I read this, the limiting principle of the Commerce Clause is intact. Hooray. BUT, apparently Congress CAN compel you to buy whatever good or service it wants, as a TAX.

Want to own stocks in GM? No? Well then I guess you won't mind paying this tax. Want flood insurance? You don't need it you say? A tax for you then. Have you bought organically grown peanuts in the past year? Deathly allergic, huh? Ok, just pay this tax.

Every special interest just got the green light to request the American people subsidize whatever they make. The only limit the government would face is the political will to stop them.

Our high deductible is in that range. It will still be cheaper for us to pay the penalty and keep our premiums low by keeping our deductible high -- as long as the coverage is still available. But how long will it remain available if buying it subjects customers to a tax?

But hey, if you like your coverage, you can keep it, right? Unless we don't like your coverage.

MikeD -- Not that I'm happy with the decision, but it did carve out an exception for any penalty that was high enough to force a decision on the consumer. (Unlike the Obamacare penalty, which is pitifully small in comparison with the cost of compliant health coverage. I don't know where the limit will be, but if Congress goes too crazy with the penalty option, there is still some chance the Court will strike it down.

Particularly if we elect the right president for a term or two, and appoint some strict constructionist justices to replace the ones who will be retiring soon.

But Mike, this is an improvement over where we are now. We bought most of GM -- not individually, but collectively, and not with a new tax, but via debt. How much have we spent to fund green energy, or to subsidize organic peanuts for that matter?

If the government actually started making people pay a new tax to fund its decisions about what 'we' should buy, that would be a major step forward in controlling government spending. We should only wish that the government would start doing business that way.

I don't know. Roberts may have done better than it looks, here. It's still our job to destroy the ACA, or else -- failing that -- to start laying the groundwork for secession. If you got the kind of Congress that could overturn the ACA, though, perhaps they could also pass a Balanced Budget Amendment: and then, given this new limit on the Commerce Clause, you'd have a much healthier government in just those two steps.

3) Developing a decent--market-oriented--replacement to achieve health care reform--both in services and in insurance.

4) Getting the Congress to recognize that the limit placed by the Court's majority ruling on the Commerce Clause is, in fact, the limit of wet tissue paper, and will be so, so long as Wickard remains unreversed, either by the Court or by the Congress.

5) Getting a Congress with the stones to instruct the Court on any constitutional matter, much less on these two clauses.

But that, as T99 and others have said, is what ballot boxes are for. Repeatedly, until we get a Congress that is responsive to its employers.

Well yeah a penal, ah, rather a tax makes all the difference in the world.

//Uses best Peter Lorre voice to say// Oh well, the silver lining will be the quality of care along with when and what care is received now becomes be an exercise of each individuals prerogative. Much like the standard of care in the UK. Bwaaaaaahahahahahahahahahahahahahahahahahaha.

That Living Will stuff I mentioned the other day, in another thread... Forget it.

Grim, It was not a suggestion, but a grim prediction of our future. Like Central Africa, or Robert Kaplans essay "The coming Anarchy"

The concept of Health Insurance is dead- buried at midnight at a crossroads with a stake in it's heart. "Health Care Plans" have nothing to do with insurance. Insurance is what rational people buy, to protect themselves from an unexpected catastrophic event that ordinary savings will not cover. The reason health care plans are so popular is #1- people think they are getting something for free, because the cost is hidden, or #2- people don't have a damned nickel saved ,even to cover a routine Dr. visit. . The reason I fear a socialist Marxist takeover is because we have an enormous population of Americans with zip for resources or retirement- they are going to expect someone else to pick up the tab. They have no money saved, no investments, no food stored, no nothing- and every one of them is going to ask the government to "do something". And the Gov. will. That something is not going to be pleasant for people who worked hard, saved money, refrained from going on expensive vacations or impulse buying fancy cars etc- We are going to get what we worked for, stolen, to give to those who partied their money away- in essence, they get to party twice, once on their dime, once on ours. And we get "austerity" twice, once because we were prudent and frugal, and the second time because the bastards are stealing our savings. Most people do not seem to realize what the hell is going to come out of this SC decision- the government is paying the bills, now they are going to control every aspect of behavior that can influence heath care costs. You ride a motorcycle? No coverage. You ski? Sorry about that. You don't want to abort that baby who may have a "condition"-well, you choice but the gov. won't pay... etc. We are looking at the birth of a nanny state on meth- A meddlers dream.

The way I understand it, only the Supreme Court gets to construe what the Constitution's words mean. If we don't like what the Court says the Constitution means, we can either vote for a guy who will put different Justices on the Court, or we can amend the Constitution. In the meantime, all Congress can do is pass laws that they hope the Court will find to be consistent with the Constitution. Congress can't change the meaning of the Constitution either directly or by requiring it to be interpreted differently.

Oh, another thing: the Catholic case is important for a lot of those other reasons also. Depending on how the ruling goes (if the ACA survives repeal and the new appeal to its constitutionality), a 1A ruling may either provide some "freedom of expression" grounds for protection from HHS mandates, or else provide a precedent for a further suit.

Or it could go the other way, in which case freedom of religion and freedom of expression would be largely dead. At that point, we who have an oath to uphold the Constitution would be obligated to fight, I think: both the 1A and the 10A would be dead letters, otherwise.

I kept thinking this morning, wait, wasn't there a good reason for Obamacare's supporters not just owning up to its being a tax in the first place? Because it clearly was. I couldn't remember, though -- were they just afraid to call it a tax because that's unpopular with voters?

But, no, Grim, you're absolutely and delightfully right. If this thing is a tax, its supporters have two huge problems. First, a revenue bill must originate in the House, whereas this one originated in the Senate. (If Scott Brown hadn't been elected, they could have fixed that, but they were afraid to submit it to a second vote.) Second, a tax bill can be repealed by a simple majority, no filibustering. I love it.

I guess someone has to start all over with this new attack, and we'll probably hear that it's a tax bill for purposes of authorizing it under the Spending Clause, but a non-tax bill not only for the purposes of the Anti-Injunction Act but also the purposes of the rules affecting revenue bills. This is why people hate lawyers, right?

Sucker just needs to be repealed. The RNC and the Romney campaign are announcing a huge wave of donations this afternoon. I contributed my bit.

To be honest, Tex, that was what made me most vexed with the government lawyers during the hearing: they were plainly arguing that it should be read as a tax when it was convenient to the government, and as a 'not-tax' when it was otherwise. You shouldn't be able to have it both ways: either it is a tax, or it is not a tax.

But now we have a ruling which says that it should be read as a not-tax in terms of the AIA, but a tax for testing its constitutionality. That's the one part of the ruling I really do find irritating in the extreme.

Yes, that's it. For the sake of the one or two lurkers [g] who are interested besides you and I, this is the relevant clause: ...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

...only the Supreme Court gets to construe what the Constitution's words mean.

I recognize I'm wandering a bit off the reservation, but it seems to me that setting the terms of reference would be a legitimate, if not necessary, aspect of setting the jurisdiction. Certainly, subsequent Congresses could change both the jurisdictions and the terms of reference within them, but at least we'd have the meaning of our documents codifying our social compact back in our hands. The problem with waiting on suitable replacing appointments is that this takes generations (one of the strengths of our court system, and one with which I agree wholeheartedly--but as with nearly all things, there are disastrous exceptions that want handling). See, for instance, Dred Scott, which took a war to correct, and Plessy, that waited 80 years for a new Court and Brown, and Wickard, which still desperately wants correction.

Our other prompt (if politically difficult) alternative is to impeach the blackguards, but doing that over an inherently political cause would set an ugly precedent.

First, a revenue bill must originate in the House, whereas this one originated in the Senate.

But to get the bill to reconciliation, didn't the Senate attach it as an amendment to a revenue bill that the House had already passed a version of and sent up to the Senate? As I recall, that was all the hoo-raw about the basic bill--there were things in the Senate version that some Democratic Representatives didn't like, but if they changed those, then the whole bill would have to be re-argued in the Senate, and under threat of filibuster.

Eric -- I get you now: Art. 3 s. 2 says the S. Ct.'s appellate jurisdiction can be limited by Congress. Hmmm. So I suppose Congress could say that the Court has no further jurisdiction over appeals from the lower federal courts construing various clauses of the Constitution. But that would leave us with the decisions of the lower courts, and in fact leave us with no way of resolving conflicting decisions delivered by the various lower courts.

Eric -- shoot, I just can't remember any more, there was such a hash of procedure as they scurried around after Scott Brown was so shockingly elected. Bummer if you're remembering correctly. So they pulled this "it's sort of a tax when it's convenient to call it a tax" scam right from the start? How annoying.

"The bill has a House number (H.R. 3590) because when it was introduced in the House it was entitled Service Members Home Ownership Tax Act of 2009 and it 's stated purpose was to "To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes". Nothing about health care there.

The bill passed the House unanimously 416-0 on October 8, 2009 (as a home mortgage credit bill). The title and text remained unchanged when it was transferred to the Senate for consideration. Following the Bill's arrival in the Senate the title was changed to the "Patient Protection and Affordable Care Act" and the homebuyer credit language was dropped and health care language inserted.

The new bill (as regards both title and text) under the old House number was subsequently debated/modified/passed by the Senate, THEN passed verbatim by the House and signed into law as mentioned above."

...Congress could say that the Court has no further jurisdiction over appeals from the lower federal courts construing various clauses of the Constitution.

I'm suggesting that instead of saying that, Congress could say (and subsequent Congresses could say differently--the risk part of my path), "The Supreme Court's jurisdiction, when handling cases involving XYZ Clause, is limited to the meaning of XYZ Clause as being ABC."

Eric H -- I don't think jurisdiction can be used that way. You could say that the S. Ct. had no jurisdiction over cases involving clause ABC unless they held that clause ABC meant (or didn't mean) XYZ, but you still wouldn't be controlling whether the Court would uphold or overturn the decision below. All jurisdiction can get you is control over whether the Court hears the case, not how it will be decided once it's there.

"Grim said...But now we have a ruling which says that it should be read as a not-tax in terms of the AIA, but a tax for testing its constitutionality. That's the one part of the ruling I really do find irritating in the extreme.

@3:17 PM"

Maddening...

"I tend to think term limits would go a long way to reforming congress."

I agree.

//the hun's struggling to keep his mouth shut as there's already one Black SUV on station at the hun hovel. Additional parking spaces would need to be added for a second, or third.//

...still wouldn't be controlling whether the Court would uphold or overturn the decision below. All jurisdiction can get you is control over whether the Court hears the case, not how it will be decided once it's there.

But that's all I'm after. Hear or don't hear the case, as you see fit. But if you hear it, you must decide on the basis of the Clause's meaning being this ___.

What I'm really disgruntled about is Constitutional Amending from the Bench, as the Court's "interpretation" "evolves" to meet this or that Court's sense of social justice. That's outside the court's purview. Social justice is definable only by society--that is, us Sovereign citizens.

The Court's decisions should be limited to the scope of what the law actually says, not what the judge thinks it says today, or what the judge thinks it ought to have said.

But you're getting it backwards. Jurisdiction limits the Court's choice whether to hear it or not hear it, but cannot limit the basis on which the Court will rule. In your formulation, the Court is free to hear it or not hear it, but if it hears it, it must rule on a particular basis. That's not jurisdiction.

I tend to think term limits would go a long way to reforming congress.

I disagree with term limits. I do not want government telling me who my representative may not be.

Now the Articles of Confederation had a solution that would be applicable today as a Constitutional Amendment, with very little modification. From Article V: ...no person shall be capable of being a delegate [to the Congress] for more than three years in any term of six years....

The modifications are two: adjustment for the differing lengths of Senate and House terms: I'd make it not over two terms out of four consecutive, with the length of term of the last house of Congress in which served defining the number of years "two terms" sitting down would add up to. The second modification would enjoin the individual from serving in government in any capacity, whether for pay or pro bono, for those two terms out of four sitting down, else the clock on sitting out would restart.

...if it hears it, it must rule on a particular basis. That's not jurisdiction.

Why isn't that a parameter of jurisdiction? I'm not telling the Court how it must rule, I'm telling the Court only what key terms mean, so as to prevent it from modifying those definitions at Court convenience. Particularly since the judges, and their staffs, decline to go look up those meanings, for instance, from Johnson's Dictionary or Cunningham's Law-Dictionary, which were contemporaneous with our Constitution's authors, and so provide clear meaning of the terms used.

It's not an element of jurisdiction because it has no bearing on what cases the Court may hear. Congress can control what cases the Court may hear, but once it's allowed to hear them, it has the free exercise of its judgment. Jurisdiction does not mean "everything pertaining to how a court will hear a case." It refers strictly to the rules that will determine whether it can be heard.